Poole v. Campbell, 44724

• Decision Date: 12 March 1956
• Docket Number: No. 2,No. 44724,44724,2
• Citation: 289 S.W.2d 25
• Parties: Solomon M. POOLE, Appellant, v. Arthur D. CAMPBELL, Trustee for The A. Byron Poole Foundation, a Charitable Trust, and John M. Dalton, Attorney General of the State of Missouri, Respondents
• Court: Missouri Supreme Court

Page 25

289 S.W.2d 25

Solomon M. POOLE, Appellant, v. Arthur D. CAMPBELL, Trustee for The A. Byron Poole Foundation, a Charitable Trust, and John M Dalton, Attorney General of the State of Missouri, Respondents.

No. 44724.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Rehearing Denied April 9, 1956.

Leman E. Atherton, Milan, for appellant.

R. M. Gifford, M. E. Montgomery, Milan, John M. Dalton, Atty. Gen., C. B. Burns, Jr., Asst. Atty. Gen., for respondent.

STORCKMAN, Judge.

This is an action for specific performance of an oral agreement to convey real estate situated in Milan, Missouri, on the west side of the public square and improved with three business buildings. The chancellor's judgment and decree was in favor of the defendants and the plaintiff has appealed.

By their written stipulation the parties agreed: On and prior to April 20, 1933, Joannah Poole owned the premises in question which were encumbered by a mortgage debt of $3,000 which was in default. A foreclosure sale was being advertised for April 21, 1933, in accordance with the terms of the deed of trust. Joannah Poole was in straightened circumstances and had been trying to make a loan on the premises or to find a buyer for the property. On April 20, 1933, she executed and delivered to A. Byron Poole, her brother-in-law, a warranty deed to the premises for the express consideration of $9,000 and said deed was duly recorded in the recorder's office of Sullivan County. At her direction A. Byron Poole paid the amount due under the note and deed of trust and some other obligations of Joannah Poole and actually paid her the sum of $3,166.13 in cash, which made the total paid to her and for her benefit the sum of $9,000, the consideration expressed in the deed. Joannah Poole died June 18, 1944, leaving as her sole and only heir the plaintiff, Solomon M. Poole. Plaintiff's father, John Poole, a brother of A. Byron, predeceased Joannah. A. Byron Poole remained in possession of the premises from and after April 20, 1933, to the date of his death on March 12, 1948. He made no conveyance during his lifetime and the record title to the premises was in his name at the time of his death. He was 82 years of age at the time of his death and died seized of property valued in excess of $70,000. He left no widow or children or deceased children or other descendants but only nephews and nieces and a brother. The will of A. Byron Poole was admitted to probate on March 22, 1948. Within a year thereafter plaintiff brought suit in two counts. The first was to contest the will of A. Byron Poole and the second was for specific performance. There was a separate trial of Count 1, the will contest, which resulted in a finding that the purported will was the last will and testament of A. Byron Poole and said order and judgment was not appealed. Since the will created a charitable trust known as 'The A. Byron Poole Foundation,' the attorney general was made a party to the suit. Arthur D. Campbell qualified as trustee and entered upon the discharge of his duties and as such was made a defendant in the case. Mrs. Poole's first name is 'Johanna' in the transcript, but her signature on the warranty deed is 'Joannah'; she is sometimes referred to in the record as Jo or Jose. A. Byron Poole is often referred to as By.

Count 2 of the fourth amended petition upon which the case was tried, is asserted by plaintiff to be an action solely for the specific performance of an oral contract to convey lands. This remaining count will be referred to as the petition. Paragraph 8 pleaded the alleged contract or contracts between Joannah Poole and A. Byron Poole in the alternative. The second alternative was that 'said A. Byron Poole offered to pay her $9,000 for said properties and when the said interest and everything was paid he would return the buildings to plaintiff and keep the expenses out.' This alternative was eliminated from the case by the plaintiff's election at the end of plaintiff's case. Plaintiff submitted his case on the first alternative in said paragraph 8, which is: 'That on or about the 20th day of April, 1933, the said A. Byron Poole contacted the said Johanna Poole and offered if she would deed him the buildings that he would pay her the sum of $9,000 and as a further inducement to the said Johanna Poole to convey said buildings and property the said A. Byron Poole orally agreed that if the said Johanna Poole would convey said property to him that he would, when he was through with said property, turn the said property to her, the said Johanna Poole, if living, if not to Mac (being the name that this plaintiff is commonly known) or that when he was through with said property he would turn said property to this plaintiff * * *.'

Prior to answer defendants by motion sought a dismissal of plaintiff's petition on the ground it failed to state a cause of action. Each of the defendants objected to the introduction of any evidence on the same ground.

The judgment and decree recited that the court found 'the issues against the plaintiff, Solomon M. Poole, and in favor of the answering defendants on Count Two of plaintiff's Fourth Amended Petition,' and further ordered, adjudged and decreed that 'the Trust set out in the Last Will and Testament of A. Byron Poole, deceased, is in all things confirmed, and that the fee simple title in and to the lands in question * * * is vested in the A. Byron Poole Foundation, a charitable trust, as defined in said Will and subject to the terms and conditions therein set forth.'

The plaintiff testified in substance and effect as follows: In the latter part of March or the first part of April when the buildings were being advertised for sale, the plaintiff had a conversation with Martin Wunderlich in the office of Higgins and McDuff. Mr. Wunderlich was a road builder who was keeping company with Jane Poole, a cousin of plaintiff. Those present were Albert Poole, Ralph McDuff, Jack Handy, Martin Wunderlich and the plaintiff. The discussion was with reference to Mr. Wunderlich's buying the buildings. No agreement was reached; Wunderlich said he would like to talk to plaintiff later. The conversation stopped when By Poole came in. On defendant's objection this court ruled that plaintiff was incompetent to testify to any conversation with By Poole, deceased, or any statement made by him in plaintiff's presence. No complaint is made on appeal with respect to such ruling.

John W. Stanley, 84 years old, a brother of Joannah Poole and uncle of the plaintiff, testifying by deposition with respect to a conversation he had with By Poole about 1945, just before leaving Milan for Kansas City, stated: 'Just before I left here I was talking to him over there, he asked me what I wanted, and we went around the corner of the building and I said I was going away and just wanted to know--I had heard so much about it--what he was going to do about that, and he said, 'I always was a man of my word; I promised them and I'll do it.' What did he promise? To turn them back to her if she was living, and if not to turn them back to Mac.' The witness also testified to a conversation he had with Thee Poole, a brother of By, at the hardware store in By's presence. This exchange was: 'Now, Uncle John, you mentioned another conversation in the hardware store? Yes. About when was that? That was--I don't know--just a little bit after he bought the buildings. Who was present? Thee said--he was present--Thee said to me, 'John, I guess By has got all the money he wants. I offered him a thousand dollars for his bargain and he said he couldn't sell it.' By didn't say nothing. I said 'Why couldn't he sell it" Thee said, 'He said he had a contract he couldn't sell it.'' The witness testified that By Poole was an honest man and always did what he agreed. He had never seen a written contract of any such agreement.

John F. Handy, a resident of Milan thirty years, testified that he was present in Ralph McDuff's office when the buildings on the west side of the square were discussed. The witness, a superintendent for Martin Wunderlich, could not fix the time of the meeting but thought it might have been in the late summer or early fall a couple of years after he came to Milan in 1930. Those present in addition to the witness were Martin Wunderlich, Ralph McDuff, Mac Poole and Jane Poole. By Poole came in later. Wunderlich's purpose in being there was 'to put up some money to release a mortgage that was on some buildings of Mac Poole.' Witness Handy testified that By Poole said 'If they would let him put up the money and take the buildings, when the interest and everything was paid, he would return the buildings to Mac and keep the expenses out.' After this statement was made Wunderlich and the witness went back to his home.

T. S. Poole, sometimes called Thee, 88 years of age, an older brother of By Poole, testifying by deposition with respect to a conversation he had with By a day or two after By bought the buildings, stated: 'I said, 'By, you got a bargain; how much will you take for your bargain?' He says, 'Why, I can't sell that building, them buildings.' Did he tell you why he couldn't sell the buildings? Yes, he said he bought--I believe the deed was in Jo's name--he said he had promised Jo, he had went down and seen her and promised her if she would sell him those buildings and pay the mortgage off, when he got through with them he would turn them back to Mac. And he at that time refused to sell the buildings to you? Yes, said he could't sell them.' The witness said he had intended to be a bidder at the foreclosure sale and 'I would have made them bring $13,000 easy.' In his opinion the reasonable market value of the buildings in 1933 was 'at least $14,000 or $15,000.' Witness Thee Poole testified that Mac and his mother inherited $40,000 in government bonds and he didn't know what else from John Poole, and that he expected that part of what Mac...